United States v. Posr

October 25, 2006

UNITED STATES OF AMERICA,v.POSR A. POSR, DEFENDANT.

The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

MEMORANDUM ON CERTIFICATE OF CONTEMPT

On October 24, 2006, the Court executed a certificate of contempt certifying its determination on March 6, 2006 that the defendant committed criminal contempt of Court and sentenced him to a term of imprisonment of 21 days. The purpose of this memorandum is to set forth relevant background and to address certain points that, although not raised by the defendant, have been considered by the Court in taking this action.

1. In this case, defendant was charged in an information with assaulting a federal officer on June 22, 2004.*fn1 In substance, the government contends that defendant tried to bring a video camera into the Lynne Stewart trial in defiance of court rules and signs in the courthouse prohibiting the introduction of cameras. When he was told by a court security officer ("CSO") to check the camera, the defendant allegedly engaged in a physical altercation with the CSO.

The case originally was tried before Magistrate Judge Frank Maas and a jury. Defendant was convicted and sentenced in principal part to 6 months imprisonment. He thereupon filed a notice of appeal to the district court.

At that point, Magistrate Judge Maas learned that the defendant had not previously waived his right to be tried before a United States District Judge.*fn2 A few days later, the judgment of conviction was vacated.*fn3 The case thereupon was assigned to the undersigned.

Defendant appeared for the first time before the undersigned on March 6, 2006, which was the occasion on which the contempt was committed. When the clerk called the case, the defendant announced an appearance as "Posr Amojo Posr attorney of record." When the Court inquired as to whether the defendant was an attorney, he responded, "Yes, I am" and proceeded to state that he was admitted to practice in the State of New York.

The Court then pursued the matter in order to determine whether the defendant really was admitted to practice law or whether, instead, he lacked a license and therefore should be given the appropriate cautions given to defendants in criminal cases concerning their right to counsel, the inadvisability of proceeding without an attorney, and the like. But the defendant then embarked on an attempt to evade the issue:

THE COURT: Were you ever admitted to practice by any court?

MR. POSR: No. Well, yes well what's - how is the court defining admitted to practice?

From that point onward, the defendant, both while standing in the well of the Court and while under oath on the witness stand, engaged in a studied refusal to provide information in response to direct questions as to whether he was licensed to practice law. His chosen means included evasive, unresponsive and, in some instances, patently false answers to questions. While the Court ultimately elected not to press contempt determinations based upon false or merely unresponsive answers, it did conclude that defendant should be sentenced for his deliberate failure to give responsive answers following direct court orders that he do so. Accordingly, the Court, acting pursuant to Fed. R. Crim. P. 42(b), found him in criminal contempt of court.

As the Supreme Court has held, a face to face refusal to comply with a court's order to testify is punishable summarily under Rule 420).*fn4 And it has been beyond serious question since even before Judge Learned Hand's famous decision in United States v. Appel,*fn5 that evasive and unresponsive testimony is tantamount to a refusal to answer and punishable as criminal contempt of court.*fn6

2. Although this Court cited the defendant for criminal contempt upon the occurrence of the contumacious behavior on March 6, 2006, it did not immediately impose punishment. The delay in doing so affords no defense to the accused.

To begin with, the defendant's bizarre and self-destructive behavior raised a substantial question in the Court's mind as to the defendant's competence and sanity. It therefore ordered a competency examination.*fn7 Following that determination, both the government and the defendant requested that sentencing on the contempt citations be held in abeyance.*fn8 Indeed, the defendant argued that sentencing should be deferred because the imposition of sentence might interfere with his ability to prepare for trial.*fn9 The Court therefore deferred sentencing and the entry of the certificate of contempt until after completion of both the competency examination and the trial.*fn10

It would have been improper to sentence a defendant, especially a defendant unrepresented by counsel, while his competency was in issue.*fn11 Accordingly, the interval from March 6, 2006 ...

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